Senate passes amendment to limit NDAA – Update

Yesterday, Nov. 29, 2012, at 10:05 p.m. (EST), the United States Senate passed an amendment to address the most repugnant part of the notorious National Defense Authorization Act (NDAA) for Fiscal Year 2013 — the authorization of the federal government to arrest and indefinitely detain U.S. citizens without charge or trial.

The purpose of Amendment No. 3018 to S. 3254 is “To clarify that an authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States.”

Towards that purpose, a section is added at the end of subtitle D of title X of the NDAA law, to read:

Section 1032. Prohibition of the Indefinite Detention of Citizens and Lawful Permanent Residents

Section 4001 of title 18, United States Code, is amended … by inserting after subsection (a) the following:

“(b)(1) An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without cause or trial of a citizen or lawful permanent resident of the United States, unless an Act of Congress expressly authorizes such detention.

“(b)(2) Paragraph (1) applies to an authorization to use military force, a declaration of war, or any similar authority enacted before, on, or after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2013.

“(b)(3) Paragraph (1) shall not be construed to authorize the detention of a citizen of the United States, a lawful permanent resident of the United States, or any other person who is apprehended in the United States.”

[Source: Amendment No. 3018, in PDF]

The amendment was sponsored by Sen. Diane Feinstein (D-Calif), and has 17 co-sponsors:

  • 9 Democrats: Chris Coons, Frank Lautenberg, Kirsten Gillibrand, Jon Tester, Tim Johnson, Sheldon Whitehouse, Max Baucus, Mark Begich, John D. Rockefeller.
  • 7 Republicans: Susan Collins, Mike Lee, Rand Paul, Mark Kirk, Dean Heller, Jim DeMint, Jim Webb.
  • 1 Independent: Bernie Sanders.

The amendment passed 67-29 (4 not voting).

Can you believe that 29 senators (25 Republicans; 3 Democrats; 1 Independent) actually voted “no” on this amendment? That means these 29 senators actually are in favor of the arrest and detention of U.S. citizens without charge or trial!!!!

Here’s a list of the senators who voted “Nay” or “No,” followed by a list of those who voted “Yea” or “Yes”. Republicans are colored red; Democrats are colored blue. [Source: United States Senate]

Nay (25 Republicans, 3 Democrats, 1 Independent):

  1. Ayotte (R-NH)
  2. Brown (R-MA)
  3. Burr (R-NC)
  4. Chambliss (R-GA)
  5. Coats (R-IN)
  6. Cochran (R-MS)
  7. Cornyn (R-TX)
  8. Grassley (R-IA)
  9. Hatch (R-UT)
  10. Hutchison (R-TX)
  11. Isakson (R-GA)
  12. Johanns (R-NE)
  13. Johnson (R-WI)
  14. Kyl (R-AZ)
  15. Lieberman (ID-CT)
  16. Lugar (R-IN)
  17. Manchin (D-WV)
  18. McConnell (R-KY)
  19. Nelson (D-NE)
  20. Portman (R-OH)
  21. Pryor (D-AR)
  22. Roberts (R-KS)
  23. Rubio (R-FL)
  24. Sessions (R-AL)
  25. Shelby (R-AL)
  26. Thune (R-SD)
  27. Toomey (R-PA)
  28. Vitter (R-LA)
  29. Wicker (R-MS)

Yeas (46 Democrats, 20 Republicans, 1 Independent):

  1. Akaka (D-HI)
  2. Alexander (R-TN)
  3. Barrasso (R-WY)
  4. Baucus (D-MT)
  5. Begich (D-AK)
  6. Bennet (D-CO)
  7. Bingaman (D-NM)
  8. Blumenthal (D-CT)
  9. Blunt (R-MO)
  10. Boozman (R-AR)
  11. Boxer (D-CA)
  12. Brown (D-OH)
  13. Cantwell (D-WA)
  14. Cardin (D-MD)
  15. Carper (D-DE)
  16. Casey (D-PA)
  17. Coburn (R-OK)
  18. Collins (R-ME)
  19. Conrad (D-ND)
  20. Coons (D-DE)
  21. Corker (R-TN)
  22. Crapo (R-ID)
  23. DeMint (R-SC)
  24. Durbin (D-IL)
  25. Enzi (R-WY)
  26. Feinstein (D-CA)
  27. Franken (D-MN)
  28. Gillibrand (D-NY)
  29. Graham (R-SC)
  30. Hagan (D-NC)
  31. Harkin (D-IA)
  32. Hoeven (R-ND)
  33. Inhofe (R-OK)
  34. Inouye (D-HI)
  35. Johnson (D-SD)
  36. Kerry (D-MA)
  37. Klobuchar (D-MN)
  38. Kohl (D-WI)
  39. Landrieu (D-LA)
  40. Lautenberg (D-NJ)
  41. Leahy (D-VT)
  42. Lee (R-UT)
  43. Levin (D-MI)
  44. McCain (R-AZ)
  45. McCaskill (D-MO)
  46. Menendez (D-NJ)
  47. Merkley (D-OR)
  48. Mikulski (D-MD)
  49. Moran (R-KS)
  50. Murkowski (R-AK)
  51. Murray (D-WA)
  52. Nelson (D-FL)
  53. Rand Paul (R-KY)
  54. Reed (D-RI)
  55. Reid (D-NV)
  56. Risch (R-ID)
  57. Sanders (I-VT)
  58. Schumer (D-NY)
  59. Shaheen (D-NH)
  60. Snowe (R-ME)
  61. Stabenow (D-MI)
  62. Tester (D-MT)
  63. Udall (D-CO)
  64. Udall (D-NM)
  65. Warner (D-VA)
  66. Webb (D-VA)
  67. Whitehouse (D-RI)

Note that more Republican senators voted AGAINST than FOR the amendment (25 v. 20), whereas more Democrat senators voted FOR than AGAINST the amendment (46 v. 3).

The GOP truly is dead.

See also:

UPDATE (Dec. 1, 2012):

The Senate’s passage of this amendment is generating a lot of buzz on the Internet, with some being troubled by the qualifying phrase “unless an Act of Congress expressly authorizes such detention” in what some call the amendment’s key sentence, (b)(1):

(b)(1) An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without cause or trial of a citizen or lawful permanent resident of the United States, unless an Act of Congress expressly authorizes such detention.

However, the amendment qualifies (b)(1) with (b)(3), which leaves out the phrase “unless an Act of Congress expressly authorizes such detention”:

(b)(3) Paragraph (1) shall not be construed to authorize the detention of a citizen of the United States, a lawful permanent resident of the United States, or any other person who is apprehended in the United States.

This, however, begs the question of why have (b)(1) in the first place, if (b)(3) then qualifies it by leaving out the “unless an Act of Congress” phrase? Why not strike out (b)(1) altogether?

To further confuse matters, Michael Kelly of Business Insider contends that the amendment actually makes it EASIER for government to detain U.S. citizens indefinitely.

H/t Sage_brush for the Business Insider tip.

~Eowyn

28 responses to “Senate passes amendment to limit NDAA – Update

  1. Thank you for this! I’m emailing it to everyone as a Guide for Voting in the mid-term elections.

  2. ah….that wretched, turncoat Scotty Brown.
    What a Patriot-con he was.

  3. Rubio is toast. Traitor.

    • Found this in an article speculating on a possible presidential run in 2016 by Jeb Bush:

      Jeb Bush has long mentored Rubio, a Cuban-American of definite conservative credentials. A split between the two could cause a rift in the GOP as the party still reels from the Governor Mitt Romney’s defeat at the hands of President Obama.”

      http://www.speroforum.com/a/QOBERLOKZA31/73324-PossibleGOPriftasJebBushconsiderspresidentialrun

    • DCG, what I don’t get is we holler about Little (o) not having natural born parents, but correct me if I’m wrong, doesn’t Rubio have the same prob.?

      • Most definitely! Rubio is not a natural born citizen because his parents were not US citizens at the time of his birth. So, unless Article II of the US Constitution is amended, any Rubio presidential candidacy is a problem and Republicans or conservatives (not synonymous) who support his candidacy (and yet objected to Obama’s based on his supposed father being a Kenyan British citizen) are hypocrites.

  4. I don’t get it? Was there something else hidden in it to vote nay?

    • I agree, Sally. Something very icky about that “yea” list. Here is the actual wording from the bill. I skimmed through – and I don’t think I’m misinterpreting it.

      Senate Bill 1867, the Defense Authorization Act for Fiscal Year 2012 page 361

      3 SEC. 1032. REQUIREMENT FOR MILITARY CUSTODY.
      (a) CUSTODY PENDING DISPOSITION UNDER LAW OF
      WAR.—
      (1) IN GENERAL.—Except as provided in paragraph (4), the Armed Forces of the United States shall hold a person described in paragraph (2) who is captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107–40) in military custody pending disposition under the law of war.

      (4) WAIVER FOR NATIONAL SECURITY.

      —The Secretary of Defense may, in consultation with the Secretary of State and the Director of National Intelligence, waive the requirement of paragraph (1) if the Secretary submits to Congress a certification in writing that such a waiver is in the national security interests of the United States.
      (b) APPLICABILITY TO UNITED STATES CITIZENS AND LAWFUL RESIDENT ALIENS.—
      (1) UNITED STATES CITIZENS.—The requirement to detain a person in military custody under this section does not extend to citizens of the United States.

      Here is the PDF – http://www.gpo.gov/fdsys/pkg/BILLS-112s1867pcs/pdf/BILLS-112s1867pcs.pdf

      I hope someone with more legalese than I have can deconstruct this for us. Am I misinterpreting it?

      • Section 1032 is precisely the part of the NDAA law which is so troubling, and that’s what Amendment 3018 redresses, esp. with this all-important (b)(3):

        “(3) Paragraph (1) shall not be construed to authorize the detention of a citizen of the United States, a lawful permanent resident of the United States, or any other person who is apprehended in the United States.”

        While I share your skepticism and incredulity that the Senate actually passed Amendment 3018 (Henry Makow puts it best with this quip in linking to this post: “Mysterious sign of sanity in US Senate”), the language of (b)(3), which amends NDAA’s Section 1032, is clear and unambiguous.

        Now we wait to see if the House also approves this amendment, and what Obama will do….

    • In addition – I heard Carl Levin, (the sponsor of this bill, and one of my senators) say he fully expects Obama to veto this bill. It seems like some kind of bizarre ceremonial gesture.

    • Sally, that is what I am wondering. This seems entirely too crazy.

  5. Sure is shocking (NOT) to see all those Constitution spouting, flag waving Republicans on the NO side. Amazing people still believe that party has anything more going for it that the corrupted Democrat party….

    These senators that voted YES, I guess I offer my congratulations, however I have a feeling the majority of them were afraid we the sheeple would somehow take power and toss them all away without due process.

    Can’t wait to see what the Republican House does with this amendment (anyone wanting to place bets, just leave your email addr).

  6. That Harry Reid. We Rural Nevada folks tried to rid him but the Libs in Vegas kept him in office.He is hated in rural Nevada like where I live. That trader…

  7. Rubio!!! What could he possibly be thinking?!!!
    And in my state, Kerry voted the right way and Brown voted the wrong way???!!!

    This is a wake-up call. I knew Brown was a RINO, but I didn’t know he was an idiot!!!

  8. There’re Republicans who would vote against this and more of ‘em than Demo-rats who did? Jeez…

  9. Rubio may have voted that way because he didn’t think the wording was accurate or protective of citizens enough. Amendments are written in such a complicated way, and often there are added things thrown in that have nothing to do with the topic but just meant to appease in order to obtain votes. I wouldn’t throw Rubio under the bus just yet.

  10. Thank you Dr. Eowyn for this informative post. Finally, some good news coming from the Senate. I am shell-shocked at Rubio!

  11. A few people said they were shocked at Rubio. Not surprising, really. Within four days of being elected 11/2/10, he rushed off to Israel by 11/6/10. The “suspicions” at Ron Paul Forums at the time were that Rubio had run over there to get his “marching orders,” lol:

    11/6/10:  NEWLY-ELECTED RUBIO RUSHES OFF TO ISRAEL – (& updated comment):
    http://theparadisereporter.wordpress.com/2010/11/06/newly-elected-rubio-rushes-off-to-israel-2/

    I had also saved a quote from 3/12/11 which said in part:

    “The Geo Group (subsidiary of the notorious Blackwater now known as Xe) is running a private prison in the (FLA) panhandle and has Marco Rubio to thank for getting a foot in the door. They heavily contributed to his campaign in 2010. … Geo Group consistently reports income over one billion dollars…”

    Source: FLA: SCOTT-RUBIO-GEO-BLACKWATER:
    http://theparadisereporter.wordpress.com/2011/03/12/fla-scott-rubio-geo-blackwater-2/

    Formula:  Rubio + Geo/Blackwater + $Privatized$Prisons$ = No Vote re NDAA Amendment.

    Makes Total Sense to me, unfortunately.

    (BTW, that was a funny comment in Makow’s tweet & is why I ended up here. :)

  12. I can’t believe Rand Paul voted for this!

  13. Have you all forgotten nobama’s EO #______ was recently upheald in the courts on appeal that allows no charge arrests and indefinite detention. So this vote made little sense except to cover their asses on this. nobama gets what he wants no matter and will continue to do so until he is removed!!!!!!!!
    Sorry I don’t have that executive order number on hand for you.

  14. This is what an acquaintance of mine — a constitutional law attorney and a former military intel officer — wrote me:

    “I argue NDAA is facially unconstitutional – BUT if passed by Congress, it very well might pass muster as a suspension of habeas corpus as authorized in the US Constitution. It (NDAA) is very dangerous. Congress has always had the authority to suspend habeas corpus, but it has always had to specifically do so. This amendment is nothing but a Congressional rebuke to the NDAA claims. I do not believe – and I grant, without any research or further analysis – that the amendment establishes any barriers not already present in the US Constitution.”

    • But we have all noticed the lack of respect Washington holds for the Constitution lately. Specially from the nobama administration!

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s